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The administration's record in the courts

The administration's record in the courts
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President Donald TrumpDonald TrumpBlinken holds first calls as Biden's secretary of State Senators discussing Trump censure resolution Dobbs: Republicans lost in 2020 because they 'forgot who was the true leader' MORE famously promised to win so much that his supporters would be tired of it. But as a running tally of legal challenges to his administration’s actions shows, he has lost in court more than any other president. His overall win rate is currently 17 percent, while past administrations generally won around 70 percent of cases, according to multiple studies.

The administration’s court losses have occurred in areas as varied as immigration, environment, housing and public assistance. Looking at the cases, our new analysis shows that, while there are a variety of factors behind the abysmal record, judicial review has worked. And as long as the administration scorns basic legal requirements in order to advance its agenda, courts will likely continue to rule against this administration’s actions.

Judicial review is available under the 1946 Administrative Procedure Act (APA). Under that act, agencies are required to follow notice-and-comment procedures and provide a reasoned explanation for their decisions. The act’s requirements help to slow down agencies when they are seeking to change course, which promotes stability. When agencies take the time needed to dot their i’s and cross their t’s, industry has more opportunity for investment and innovation; conversely, an unpredictable regulatory landscape can lead to a decrease in investment. 

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The high win rate of prior administrations suggests that presidents are generally free to use agencies to make policy as long as they comply with these basic constraints. But our analysis shows that, with an especially aggressive administration bent in many cases on flouting the intent of congress, those legal constraints can make a difference. As our data show, agencies under the Trump administration have ignored the APA’s basic requirements. In cases where a court has ruled, agencies have successfully shown that they complied with their governing statutes only 22 percent of the time. Agencies have been able to show that they complied with notice-and-comment requirements only 24 percent of the time. And agencies have shown that they complied with reasoned explanation requirements only 25 percent of the time.   

Some commentators place the blame for early court losses on inexperienced agency heads. However, the data on court rulings suggest that the administration has not learned over time. The administration’s win rate, which was under 5 percent early in the presidential term, did climb to a high water mark just under 20 percent (still a historically low rate). But in the latter half of Trump’s term, the win rate has been dropping back down, leading to the current 17 percent. 

The administration has also blamed “liberal,” “activist,” “Obamajudges, but the Trump administration has a historically low win rate even in front of Republican-appointed judges: 36 percent (at current count). For context, three prior studies found that agencies won in front of partisan-aligned judges at rates of 68 percent or higher. In fact, even Trump appointees have found agencies to be flouting the law. For example, in a recent decision from the U.S. Court of Appeals for the Second Circuit, three Trump appointees found unanimously that the National Highway Traffic Safety Administration had violated its governing statutes by reducing the penalty that automakers pay for violating fuel economy standards. Overall, in all cases decided by either a Trump-appointed district judge or a panel of judges that included at least one Trump appointee, the administration still has only won nine out of 23 cases (a 36 percent win rate).

It is true that many important cases remain pending. But given the record so far, it seems clear that it will be tough for the administration to satisfy the reasoned explanation requirement. For example, in issuing a rule to roll back President Barack ObamaBarack Hussein ObamaBiden's Cabinet gradually confirmed by Senate To fix social media now focus on privacy, not platforms Just 11 percent of Americans satisfied with direction of US: Gallup MORE’s vehicle emissions standards, the Trump administration’s own analysis shows that the benefits (in cost savings) of the rollback do not outweigh the costs to the public. Before that rule was finalized, the White House’s Office of Management and Budget (OMB) stated in an internal back-and-forth, that the justifications for the rule were a “bit thin” and “cursory.” And the agency never fixed those problems before finalizing the rule. Now it must attempt to justify the harms of its rule in court.

If Democratic nominee Joe BidenJoe BidenDobbs: Republicans lost in 2020 because they 'forgot who was the true leader' Should deficits matter any more? Biden's Cabinet gradually confirmed by Senate MORE wins the presidential election, it is likely that the administration would begin a process to roll back Trump-era rules and many of the pending cases would be put on pause. The result would be that the Trump administration will have very little to show for its deregulatory push. 

If Trump wins a second term, agencies may continue to defy governing statutes and procedural rules. Unfortunately, judicial review does not provide a remedy against all potentially illegal actions by a president or his agencies. Agencies are adept at the game of “regulatory whack-a-mole” where they replace a challenged regulation with a new, still-problematic regulation, forcing advocates to refile their lawsuit. And in a second term, Trump would continue to appoint judges who might decide in his favor more often. But only judges who are willing to overturn long-standing precedents, such as the requirement that agencies provide a reasoned explanation for their decisions, would dramatically shift the record. And to date, the influx of Trump-appointed judges has not shown the desire to do that. Thus, even a reelected Trump is at risk of continuing to lose dramatically in court. 

Bethany A. Davis Noll is an adjunct professor of Law at NYU School of Law and Litigation Director at the Institute for Policy Integrity, where Christine Pries is the associate director for Strategy and Operations. Policy Integrity filed amicus briefs in several cases challenging Trump administration rollbacks, but did not represent any of the parties in the cases.